EX-4.1






Exhibit 4.1




 




 




FERRO CORPORATION




and




THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

as Trustee




FIRST SUPPLEMENTAL INDENTURE




Dated as of August 19, 2008




 









 





          FIRST SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), dated as of August 19, 2008,
between FERRO CORPORATION, an Ohio corporation (the “Company”), and The Bank of New York Mellon
Trust Company, N.A., a national banking association, the successor-in-interest to Chase Manhattan
Trust Company, National Association, as trustee (the “Trustee”), to the INDENTURE, dated as of
March 25, 1998, between the Company and the Trustee (the “Indenture”). Capitalized terms used and
not defined herein shall have the meanings ascribed to such terms in the Indenture.




          WHEREAS, the Company desires to amend the Indenture as set forth herein;




          WHEREAS, Section 902 of the Indenture permits amendment of the Indenture in this respect by
the Company and the Trustee with the consent of the Holders of at least a majority in principal
amount of the Outstanding Securities of each series affected by such amendment and subject to the
other provisions of Article Nine of the Indenture;




          WHEREAS,
the Company’s
9 1/8% Senior Notes due January 1, 2009 (the “Securities”), represent the
only Outstanding Securities issued under the Indenture; and




          WHEREAS, the Company has commenced, pursuant to the Offer to Purchase and Consent Solicitation
Statement of the Company, dated June 20, 2008, as the same may be further amended, supplemented, or
modified from time to time (the “Offer to Purchase”), an offer to purchase all of the Outstanding
Securities and a solicitation to obtain (a) the consent of the Holders of at least a majority in
Outstanding principal amount of the Securities to the amendments to the Indenture set forth in
Section 2 hereof and (b) the direction of the Holders of at least a majority in Outstanding
principal amount of the Securities to the Trustee to execute and deliver this Supplemental
Indenture (collectively, the “Consent”).




          NOW, THEREFORE, the parties hereto agree as follows:




     1. Company Representations and Warranties. The Company hereby represents and warrants
to the Trustee that the Holders of at least a majority in principal amount of the Securities
currently Outstanding have provided Consents, and that all other conditions precedent provided for
in the Indenture, including without limitation, those contained in Article Nine of the Indenture,
relating to the execution of this Supplemental Indenture have been complied with as of the date
hereof.



     2. Amendments to the Indenture.



          a. The Indenture is hereby amended by (i) deleting the text of Sections 501(4), 501(5),
501(8), 801, 1004, 1005, 1006, 1007, 1008, 1009, 1304(2), 1304(5), and 1304(6) of the Indenture
and replacing them with the words “Intentionally Omitted,” and (ii) deleting all references to
such sections and clauses in their entirety, including without limitation all references, direct
or indirect, thereto in Section 501, “Events of Default.”




          b. The Indenture is hereby amended by deleting those definitions from the Indenture for which
all references to such definitions will be eliminated as a result of the provisions of Section
2(a) of this Supplemental Indenture.




 









 








     3. Miscellaneous.



          a. Ratification of Agreement. As supplemented by this Supplemental Indenture, the
Indenture is in all respects ratified and confirmed and the Indenture, as so supplemented by this
Supplemental Indenture, shall be read, taken and construed as one and the same instrument. Except
as provided for in this Supplemental Indenture, the Indenture shall remain in full force and
effect. The Consent of the Holders of the Securities to this Supplemental Indenture shall not
constitute an amendment or waiver of any provision of the Indenture except to the extent expressly
set forth herein, and shall not be construed as a waiver or consent to any further or future action
on the part of the Company.




          b. Counterparts. This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.




          c. Governing Law. This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of Ohio, but without giving effect to applicable principles
of conflicts of law to the extent that the application of the laws of another jurisdiction would be
required thereby.




          d. Effectiveness. This Supplemental Indenture and the amendments described in Section
2 hereof shall become effective only upon the occurrence of all of the following: (i) the receipt
by the Trustee, on or prior to the date of this Supplemental Indenture, of (x) an Officers’
Certificate certifying that the Holders of at least a majority in principal amount of the
Outstanding Securities have delivered their Consents (and not validly revoked such Consents) (the
“Consenting Securities”), (y) an Opinion of Counsel in accordance with Section 903 of the
Indenture, and (z) a Board Resolution authorizing the Company’s actions in entering into this
Supplemental Indenture; (ii) the execution hereof by the Company and the Trustee; (iii) the
Company’s acceptance of the Consenting Securities for payment pursuant to the Offer to Purchase on
or promptly after August 19, 2008, unless extended by the Company as described in the Offer to
Purchase; and (iv) the Company’s payment for all of the Consenting Securities validly delivered for
cancellation and payment. If the Consenting Securities are not accepted for purchase by the
Company for any reason or any of the other conditions to effectiveness contained in this Section
3(d) are not satisfied, then the Indenture and the Securities will remain in effect in their
present form and this Supplemental Indenture shall be void and of no effect.




          e. Trustee. The Trustee accepts the trusts created by the Indenture, as amended and
supplemented by this Supplemental Indenture, and agrees to perform the same upon the terms and
conditions of the Indenture, as amended and supplemented by this Supplemental Indenture. Without
limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness
of the recitals herein contained and the Offer to Purchase, which shall be taken as the statements
of the Company, and the Trustee shall not be responsible or accountable in any way whatsoever for
or with respect to the validity or execution or sufficiency of this Supplemental Indenture, and the
Trustee makes no representation with respect thereto. All of the provisions contained in the
Indenture in respect of the rights, privileges, immunities, powers, and duties of the Trustee shall
be applicable in respect of the Supplemental Indenture as fully and with like force and effect as
though fully set forth in full herein.




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          f. Indemnification of Trustee. The Company agrees to indemnify and hold harmless the
Trustee from and against any and all claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) at
any time asserted against or incurred by the Trustee by reason of, arising out of or in connection
with the execution of this Supplemental Indenture incurred without negligence or bad faith on its
part.




          g. Trust Indenture Act Controls. If any provision of this Supplemental Indenture
limits, qualifies, or conflicts with the duties imposed by Section 318(c) of the Trust Indenture
Act, the imposed duties control.




 




[signature page follows]




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     IN WITNESS WHEREOF, each of the undersigned has caused this Supplemental Indenture to be duly
executed as of the date first above written.



	 	 	 	 	 
	 	FERRO CORPORATION

 	 
	 	By:  	/s/ Sallie B. Bailey
 	 
	 	 	Name:  	Sallie B. Bailey 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

 	 
	 	By:  	/s/ Lawrence M. Kusch
 	 
	 	 	Name:  	Lawrence M. Kusch 	 
	 	 	Title:  	Assistant Vice President 	 
	 





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